United States v. Bates

Case: 22-60261 Document: 00516627849 Page: 1 Date Filed: 01/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 30, 2023
No. 22-60261 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Decorie Deshun Bates,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:21-CR-87-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Decorie Deshun Bates was convicted by a jury of possession of a
firearm by a felon. The district court denied his motion for a new trial under
Federal Rule of Criminal Procedure 33 in which he challenged the admission
of audio recordings and related transcripts of phone calls to 911. He appeals
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60261
the denial of that motion. We review the district court’s decision for an abuse
of discretion. United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005).
Bates argues that the admission of evidence as to the 911 calls violated
the Confrontation Clause. He maintains that the calls contained testimonial
statements because the caller, with whom he had a domestic dispute, placed
the calls for the purpose of having him arrested.
The evidence indicates that the caller made the 911 calls because Bates
had a firearm at her residence, pulled it out during an argument, and resisted
leaving the home. The caller discussed what was happening, described Bates,
indicated that Bates fled from the home with the handgun, and detailed his
location. In a follow-up call, the caller gave an update on Bates’s whereabouts
and indicated that he may have discarded the firearm in public. The operator
asked for information concerning the situation, sought to understand how to
respond, and primarily attempted to deal with the apparent crises.
The circumstances of the calls reflect that the caller’s statements were
not testimonial, and, therefore, the admission of evidence as to the calls did
not violate the Confrontation Clause. See Davis v. Washington, 547 U.S. 813,
822, 826, 827 (2006); Crawford v. Washington, 541 U.S. 36, 59, 68 (2004).
The evidence supports that the calls were made to enable police assistance to
address an unfolding emergency. See Davis, 547 U.S. at 827; United States v.
Proctor, 505 F.3d 366, 370-72 (5th Cir. 2007). The operator elicited answers
to permit a resolution of the ongoing situation and to enable the police to be
dispatched safely and with the appropriate information. See Davis, 547 U.S.
at 827, 828. While the second call was made after Bates fled, the emergency
had not been quelled because Bates either still had the firearm or disposed of
it in public. See Michigan v. Bryant, 562 U.S. 344, 363 (2011); Proctor, 505
F.3d at 372. An objective review of the situation otherwise does not reflect
that the caller’s statements were procured with a primary aim of creating an
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No. 22-60261
out-of-court substitute for testimony. See Davis, 547 U.S. at 822, 827, 828;
United States v. Polidore, 690 F.3d 705, 717 (5th Cir. 2012). Even if the caller
intended for the calls to result in an arrest or later prosecution, her subjective
purpose is not relevant or dispositive. See Bryant, 562 U.S. at 360; Polidore,
690 F.3d at 718.
Bates also maintains that the recordings and related transcripts of the
calls were inadmissible hearsay. He argues that the caller’s statements were
not a genuine account of her present-sense impressions or excited utterances
given that she was acting principally to inculpate him.
Assuming that the evidence was admitted for the truth of the matter
asserted therein, which seemingly is belied by the district court’s instruction
to the jury that the evidence was offered to provide context to the actions of
the responding officers, see United States v. Kizzee, 877 F.3d 650, 659 (5th Cir.
2017), the record establishes that the evidence was excepted from the hearsay
rule, see Fed. R. Evid. 801; Fed. R. Evid. 802. Because the caller gave
details regarding an ongoing situation, discussed incidents that she witnessed
or experienced and that she believed presented an imminent threat, and made
the statements contemporaneously with or soon after she saw or experienced
the events, the evidence fell within the present-sense impression exception.
See Fed. R. Evid. 803(a); Polidore, 690 F.3d at 720. The excited-utterance
exception also applies because the phone calls were made while the caller was
under the stress of the excitement caused by her interactions and experiences
with Bates and offered details as to the startling events. See Fed. R. Evid.
803(2).
Therefore, the district court did not abuse its discretion in denying a
new trial. See Arnold, 416 F.3d at 360. The judgment of the district court is
AFFIRMED.
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